Thursday, February 07, 2008

Besides custody battles between couples over their children, nothing can be more traumatic than legal battles among family members or of people who may have had close personal ties (like friends, neighbors in the community, etc). This is perhaps why Filipinos with Chinese ancestry are averse to bringing their differences to court.

Family Code prohibits cases between family members without previous earnest efforts towards compromise

This is also the reason why Article 151 of the Family Code provides that cases between members of the same family shall not prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the same case must be dismissed. Article 151 does not however apply to cases which may not be the subject of compromise under the New Civil Code.

Mediation of court cases proven to be very successful

For several years now, all civil cases and some criminal cases (with respect to their civil aspect) have been subject to what is called court-referred mediation. During the pre-trial conference or preliminary conference, the court orders the opposing parties to submit themselves to mediation for the purpose of finding a mutually acceptable solution to the dispute under the guidance of mediators trained and accredited by the Supreme Court.

Based on experience and studies, mediation has been proven to be very successful in bringing parties back to friendly relations and creating a win-win solution for all concerned. If mediation is unsuccessful, however, then the trial of the case continues.

Domestic violence cases not subject to mediation

Please take note that RA 9262 cases (violence against women) are expressly excluded from mediation proceedings at all levels (barangay and court) by any person (barangay officials, police officers, social workers and judges). Please read my article “Mediation not allowed in domestic violence cases” for the reasons why, despite its proven success, mediation is not allowed for RA 9262 cases.

Solving legal disputes without going to court

Republic Act 9285 is our country’s law providing for Alternative Dispute Resolution. ADR refers to any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency, as defined in RA 9285, in which a neutral third party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof. The law covers mediation, international commercial arbitration, domestic arbitration, arbitration of construction disputes, and judicial review of arbitral awards (domestic and foreign).

Did RA 9285 repeal or amend our system of barangay justice?

RA 9285 did not repeal, amend or modify the jurisdiction of the Katarungang Pambarangay under Republic Act No.7160, otherwise known as the Local Government Code of 1991.

Office for ADR created under the Department of JusticeRA 9285 created the Office for Alternative Dispute Resolution under the Department of Justice. Thus, if you are involved in a legal dispute with family members or with some other parties and you do not want to go into court litigation, you can avail of the services of this particular Office.Below is a primer on the essential provisions of RA 9285.

What is the policy of the State with regards resolution of disputes?

The State actively promotes party autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to resolve their disputes. Towards this end, the State shall encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial justice and declog court dockets. As such, the State shall provide means for the use of ADR as an efficient tool and an alternative procedure for the resolution of appropriate cases.

Likewise, the State shall enlist active private sector participation in the settlement of disputes through ADR. RA 9285 shall be without prejudice to the adoption by the Supreme Court of any ADR system, such as mediation, conciliation, arbitration, or any combination thereof as a means of achieving speedy and efficient means of resolving cases pending before all courts in the Philippines which shall be governed by such rules as the Supreme Court may approve from time to time.

What is an ADR Provider?

It means institutions or persons accredited as mediator, conciliator, arbitrator, neutral evaluator, or any person exercising similar functions in any Alternative Dispute Resolution system. This is without prejudice to the rights of the parties to choose non-accredited individuals to act as mediator, conciliator, arbitrator, or neutral evaluator of their dispute. Whenever referred to in RA 9285, the term ADR practitioners shall refer to individuals acting as mediator, conciliator, arbitrator or neutral evaluator.

What is arbitration?

It means a voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated pursuant to RA 9285, resolve a dispute by rendering an award.

Who is an arbitrator?

It is the person appointed to render an award, alone or with others, in a dispute that is the subject of an arbitration agreement;

What is an award?

It is any partial or final decision by an arbitrator in resolving the issue in a controversy;

What is commercial arbitration?

An arbitration is commercial if it covers matter arising from all relationships of a commercial nature, whether contractual or not.

What is confidential information?

It means any information, relative to the subject of mediation or arbitration, expressly intended by the source not to be disclosed, or obtained under circumstances that would create a reasonable expectation on behalf of the source that the information shall not be disclosed. It shall include

(1) communication, oral or written, made in a dispute resolution proceedings, including any memoranda, notes or work product of the neutral party or non-party participant, as defined in RA 9285;

(2) an oral or written statement made or which occurs during mediation or for purposes of considering, conducting, participating, initiating, continuing of reconvening mediation or retaining a mediator; and

It means any mediation process conducted under the auspices of the court, after such court has acquired jurisdiction of the dispute.

What is court-referred mediation?

It means mediation ordered by a court to be conducted in accordance with the Agreement of the Parties when an action is prematurely commenced in violation of such agreement.

What is meant by mediation?

It means a voluntary process in which a mediator, selected by the disputing parties, facilitates communication and negotiation, and assist the parties in reaching a voluntary agreement regarding a dispute.

What is meant by mediation-arbitration?

Med-Arb is a step dispute resolution process involving both mediation and arbitration.

Are there exceptions to RA 9285?

The provisions of RA 9285 shall not apply to resolution or settlement of the following:

(a) labor disputes covered by Presidential Decree No. 442, otherwise known as the Labor Code of the Philippines, as amended and its Implementing Rules and Regulations;

(b) the civil status of persons; (c) the validity of a marriage;

(d) any ground for legal separation;

(e) the jurisdiction of courts;

(f) future legitime;

(g) criminal liability; and

(h) those which by law cannot be compromised.

What are the considerations in the application and interpretation of mediation under RA 9285?

Consideration must be given to the need to promote candor or parties and mediators through confidentiality of the mediation process, the policy of fostering prompt, economical, and amicable resolution of disputes in accordance with the principles of integrity of determination by the parties, and the policy that the decision-making authority in the mediation process rests with the parties.

Are proceedings under RA 9285 confidential?

Yes, information obtained through mediation proceedings shall be confidential, subject to the principles and guidelines provided under Section 9.

Sec. 10 of RA 9285 provides for waiver of confidentiality, while Sec. 11 enumerates the exceptions to confidentiality.

How can the parties be sure that the mediator is not biased towards one party and that there is no conflict of interest?

Sec. 13 provides that before accepting a mediation, an individual who is requested to serve as a mediator shall:

(1) make an inquiry that is reasonable under the circumstances to determinate whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and any existing or past relationship with a party or foreseeable participant in the mediation; and

(2) disclosure to the mediation parties any such fact known or learned as soon as is practical before accepting a mediation.

At the request of a mediation party, an individual who is requested to serve as mediator shall disclose his/her qualifications to mediate a dispute.

RA 9285 does not require that a mediator shall have special qualifications by background or profession unless the special qualifications of a mediator are required in the mediation agreement or by the mediation parties.

Besides the opposing parties, who can participate in the mediation?

Except as otherwise provided by RA 9285, a party may designate a lawyer or any other person to provide assistance in the mediation. A waiver of participation or legal representation may be rescinded at any time.

How can a mediated settlement be enforced?

Sec. 17 provides the following operative principles:

(a) A settlement agreement following successful mediation shall be prepared by the parties with the assistance of their respective counsel, if any, and by the mediator.

The parties and their respective counsels shall endeavor to make the terms and condition thereof complete and make adequate provisions for the contingency of breach to avoid conflicting interpretations of the agreement.

(b) The parties and their respective counsels, if any, shall sign the settlement agreement. The mediator shall certify that he/she explained the contents of the settlement agreement to the parties in a language known to them.

(c) If the parties so desire, they may deposit such settlement agreement with the appropriate Clerk of a Regional Trial Court of the place where one of the parties resides. Where there is a need to enforce the settlement agreement, a petition may be filed by any of the parties with the same court, in which case, the court shall proceed summarily to hear the petition, in accordance with such rules of procedure as may be promulgated by the Supreme Court.

(d) The parties may agree in the settlement agreement that the mediator shall become a sole arbitrator for the dispute and shall treat the settlement agreement as an arbitral award which shall be subject to enforcement under Republic Act No. 876, otherwise known as the Arbitration Law, notwithstanding the provisions of Executive Order No. 1008 for mediated dispute outside of the CIAC.

Besides mediation, are there other forms of ADR?

Sec. 18 provides that the parties may agree to refer one or more or all issues arising in a dispute or during its pendency to other forms of ADR such as but not limited to (a) the evaluation of a third person or (b) a mini-trial, (c) mediation-arbitration, or a combination thereof.

For purposes of RA 9285, the use of other ADR forms shall be governed by Chapter 2 except where it is combined with arbitration in which case it shall likewise be governed by Chapter 5.

What is the Office for Alternative Dispute Resolution?

RA 9285 established the Office for Alternative Dispute Resolution as an attached agency to the Department of Justice (DOJ) which shall have a Secretariat to be headed by an executive director. The executive director shall be appointed by the President of the Philippines.

What are the objectives of the Office for ADR?

Sec. 49 provides for the following objectives:

(a) to promote, develop and expand the use of ADR in the private and public sectors; and

(b) to assist the government to monitor, study and evaluate the use by the public and the private sector of ADR, and recommend to Congress needful statutory changes to develop. Strengthen and improve ADR practices in accordance with world standards.

What are the powers and functions of the Office for ADR?

It shall have the following powers and functions:

(a) To formulate standards for the training of the ADR practitioners and service providers;

(b) To certify that such ADR practitioners and ADR service providers have undergone the professional training provided by the office;

(c) To coordinate the development, implementation, monitoring, and evaluation of government ADR programs;

(d) To charge fees for their services; and

(e) To perform such acts as may be necessary to carry into effect the provisions of this Act.

4 comments
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All civil cases are now subject to mediation (referred to as court-annexed or court-referred mediation). As part of the pre-trial proceedings, the judge orders the opposing parties to submit to mediation.

Even if mediation fails, our courts now have a system called JDR (judicial dispute resolution).

At any stage of the trial, if the parties manifest that they are willing to settle amicably, the courts will accommodate that willingness to settle. As much as possible, our courts try to get the parties to come to an amicable settlement.

Pls advice on how to remove an alcoholic brother from a residence where he resides with a sister of mine. I built the house in Dagupan City but it sits on a property that belongs to all of us. He has been emotionally abusing all the women in the family starting with my elderly mother who already passed away, and he continually intimidated us by being drunk. When he is under influence, he is verbally abusive, throwing furnitures around, demands money and good food. I also dont want his friends to come over my house and drink heavily. He also went to visit my sister in Tarlac when he was drunk and he hit her with a belt twice and urinated in bed-that's not EVEN his house! I am also scared of going home and visit myself because of what he did to me in 2006 where he was drunk and tried to force me to go somewhere, probably to make me spend money on his friends. Just last night my sister texted me that he was drunk and in a rage and I'm worried that my sister will not live longer because of the distress she has to live with. I'm also afraid he will cause damage to my house that I am not financially capable of paying for repairs anymore. He has been doing these for years- since I was in highschool and now I'm 46 yrs old and I want peace in my life and also for my sisters. To live with this brother is very traumatizing for me and for my sisters that they have to get married early to get away. Essentially he hated me and always wanted money from me when I have nothing to give. When I was a teenager, he poured boiling water to our dog-I have not seen it in my own eyes but I knew he did it because this dog always bark when he is in a drunken rage. The dog died slowly and my mother would not tell me what really happened because she was so afraid. Pls help me, I want my other sisters and their children to be able to come home this Xmas and be in peace. Shld my sister who lives in Dagupan go to our barangay and seek PPO? Or is there any other permanent way to STOP this? Pls help.

A PPO under RA 9262 is not applicable since the situation does not involve a woman and/or her children AND a man (who may be the husband, ex-husband, live-in partner, etc).

You and your sisters can file criminal complaints against your brother under the Revised Penal Code. The lot may be owned by all of you but the house belongs to you. You have therefore the right to exclude anyone from your house.

You have to coordinate with the barangay officials or PNP officers in your place. Anytime your brother creates troubles, you can immediately report the incident and these officials can help prevent further violence by arresting him.

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Related blog

Marital infidelity: causes, consequences and conclusions; Mediation not allowed in domestic violence cases (with apologies to Pia Guanio); Why marriages fail: He said, She said; Transformers: Why do persistent suitors become passive husbands? How to save your marriage alone; All about women; Why do men think the things they think, say the things they say, and do the things they do? Surviving marital infidelity; Legal lessons from Willie Revillame and Liz Amoro; Marriage: The Ultimate Fighting Championship; Boundaries in marriage; and other articles.

Color or black and white?

I took these pictures when I was a journalism teacher and yearbook adviser in Rizal High School in Pasig City, Metro Manila, Philippines from 1984 to 1995. Rizal High School was once credited in the Guinness Book of World Records as the world’s largest high school. Hello to all Rizalians!

Getting married? Take a look at what “covenant marriage” is all about

“Marriage is a covenant between a man and a woman who agree to live together as husband and wife for as long as they both live. We have chosen each other carefully and have received premarital counseling on the nature, purposes and responsibilities of marriage. We understand that a covenant marriage is for life.”